Is Bond Unconstitutional?

Financial bond, commonly referred to as bail, is the assurity a person gives the court for their return to all future court proceedings [2]. Most jurisdictions use either a judge’s discretion or a bail schedule (a long list of charges corresponding to set prices based on the severity of the crime) to determine the amount of a person’s financial bond [2].

Last week, the U.S. Department of Justice filed a brief in Walker v City of Calhoun, Georgia, challenging the city’s use of a bail schedule [1]. The Plaintiff, Maurice Walker alleges that the city’s use of a bail schedule violates the 14th Amendment due process and equal protection rights of those arrested.

Maurice Walker’s original complaint was filed because he could not afford bail after being arrested for public drunkenness, and was kept in jail for six days. He was released only when the lawsuit was filed. A Georgia federal judge granted a temporary injunction to stop the practice of jailing individuals who cannot afford to make bail. The City of Calhoun appealed the decision to the 11th U.S. Circuit Court of Appeals, where the Department of Justice filed its amicus brief last week [1].

In the brief, the Department of Justice argues that “[the] bail schedules don’t allow judges to consider individual factors, including dangerousness, making freedom available only to those who can afford it [1]”.

In Michigan, judges consider several factors when setting bail. These factors include: the seriousness of the offense with which a person is charged, prior failures to appear in court (even for traffic tickets), prior criminal history and connections to the community, as well as the probability that the person will appear in court for all future court proceedings [3].

States like Kentucky and New Jersey have adopted pretrial systems replacing cash bond with risk assessments and pretrial supervision [2]. New York now has a program in place for low-risk defendants that includes text reminders to appear in court and counseling as appropriate [2].

Stay tuned to Rights First Law for more on this and other legal news.

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